Litigation arising out of a construction dispute typically involves claims that sound both in contract and tort. The “gist of the action” doctrine and the absence of a certificate of merit (in a professional negligence claim) are two barriers often raised by defendants in attempting to dismiss or limit a plaintiff's ability to pursue an action against them in tort. In December 2014, the Pennsylvania Supreme Court issued an opinion in Bruno v. Erie Insurance, 2014 Pa. LEXIS 3319 (Pa. Dec. 15, 2014), which has a significant impact on these doctrines.

Gist of the Action Doctrine

The gist of the action doctrine is a legal mechanism to dismiss tort claims which are properly brought as a breach of contract, but which a plaintiff has recast as a tort claim. A tort claim may have the potential to recover punitive and other special damages which could not be recovered under the parties' contract.

The focus of the gist of the action doctrine has been the relationship of the tort claim with the contract itself. Courts have evaluated whether the tort claims challenged are “inextricably intertwined with the contract claims.” One of the seminal cases articulating this standard is the Pennsylvania Superior Court's 2002 decision in eToll v. Elias/Savion Advertising, 811 A.2d 10 (2002).

Under this standard, a court evaluated the challenged tort claims and whether they overlapped with or were “intertwined” with the parties' contract. Bruno provides Pennsylvania courts with a different focus in applying the gist of the action doctrine.